Monetary Cap on Malpractice

A young man has a troublesome toenail worked on by a physician with the result that he loses the toenail. He subsequently becomes known to his California surfing buddies as “Hang Nine” instead of “Hang Ten.” He goes to court against his doctor and wins $75,000.

Ridiculous? Of course but unfortunately true. And it’s the logical counterpoint to the kind of thinking demonstrated by Kussman.

The state’s Medical Injury Compensation Reform Act puts a $250,000 cap on non-economic (“pain and suffering”) awards, limits attorney contingency fees, provides for periodic payments to plaintiffs and allows evidence of double payment (from two insurance companies, for instance) to be entered in court.

It has been hailed across the nation as a trend-setting statute that has helped rein in the rising cost of medical care. It is being used as a model in other states and by proposed federal legislation. It helps bring some sense to a tort system that in our litigious state threatens to surpass the California Lottery as a path to riches, but which causes all Californians to suffer higher costs for medical care.

Kussman, a physician-turned-lawyer, cites several true stories of medical malpractice that wrench the heart. But then he argues, because of those cases, that MICRA should be repealed. That’s nonsense. For every true horror-story lawsuit that Kussman can come up with, I can counter with a ridiculous-but-true lawsuit such as the one above. Trading stories about individual cases makes good reading (that terrible doctor! that greedy patient!) but if the goal is to do the best job possible in formulating public policy, the policy makers have to use other, broader standards. They must decide the policy’s effects on millions of people.

Let me use a medical example, since we’re talking about a medical subject: Penicillin has saved millions of lives since it was developed. Some individuals are allergic to it. There has been death and suffering because of the use of penicillin on them. Does that mean that penicillin should be abandoned? Of course not. We have to say that despite the true horror stories, we’ll continue to use penicillin. That’s not heartless. That’s trying to do the best you can for the most people.

I submit MICRA is good public policy because it helps hold down the cost of medical care for California’s millions. For instance, between mid-1984 and mid-1986, physician fees rose 13.1% across the nation. But here in California, they rose by a relatively modest 9.2%. The reason is MICRA.

RICHARD F. CORLIN, M.D.

Santa Monica

(Corlin serves as chairman of the California Medical Assn.’s House of Delegates.